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Saturday, February 21, 2004

Law - 7th Circuit Ruling Interesting on Several Levels; Including Comments re Unpublished Opinions

Sierra Club, Inc. v. EPA (2/19/04 USCA 7th Cir.)
Easterbrook, CJ

Petitions to Intervene. This 4-page opinion relates to a petition to intervene in a suit brought by the Sierra Club against the U.S. EPA:

After the Illinois Environmental Protection Agency issued a permit authorizing Indeck-Elwood LLC to construct a 660-megawatt coal-fired power plant in Elwood, Illinois, the Sierra Club filed a petition for review naming the United States Environmental Protection Agency as the sole respondent—even though it has taken no action in response to the state’s decision.
A builder and the state chamber of commerce petitioned to intervene. The builder's motion to intervene is granted because its legal interests are at stake.
Rule 15(d) does not provide standards for intervention, so appellate courts have turned to the rules governing intervention in the district courts under Fed. R. Civ. P. 24. Persons whose legal interests are at stake are appropriate intervenors, so we grant [the builder's] motion. * * * The Chamber, by contrast, lacks any direct interest in the outcome. Rule 24(a)(2) provides that, unless a statute governs (and none does so here), intervention is proper “when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The Chamber does not have “an interest relating to the property or transaction which is the subject of the action”; its concern is not a legal “interest” (the permit at stake affects only one power plant) but a political or programmatic one: the Chamber favors more business and less environmental regulation. That does not justify intervention. Indeed, it does not necessarily justify even a filing as amicus curiae.
Further, the Court states:
Even if the Chamber had a legal interest to protect, it could not intervene as long as that interest is “adequately represented by existing parties.” Indeck-Elwood [the builder] will defend the state agency’s decision, and the federal EPA is likely to do so. The Chamber says that it fears that the parties will settle the proceeding, but this is a reason to deny rather than allow intervention. Why should the Chamber receive an entitlement to nix a settlement (if one can be reached) that the Sierra Club, Indeck-Elwood, and the EPA all favor? Officious intermeddlers ought not be allowed to hijack litigation that the real parties in interest can resolve to mutual benefit.
Unpublished Opinions. The second reason this opinion is interesting is found in the closing paragraph, relating to unpublished opinions:
According to the Chamber, two courts of appeals—this circuit plus the D.C. Circuit—have permitted it to intervene in litigation against the EPA. None of these decisions provides an explanation, and none is published, so they have no precedential force. For all we can tell, in those cases the Chamber represented a member that would have been allowed to intervene on its own behalf. * * *
As reported by Howard Bashman's How Appealing here, "Seventh Circuit Judge Frank H. Easterbrook supports proposed Federal Rule of Appellate Procedure 32.1, which would allow citation to unpublished and non-precedential opinions in all federal appellate courts." Bashman continues with a link to: "this letter signed by a majority of judges serving on the U.S. Court of Appeals for the Seventh Circuit opposing proposed FRAP 32.1." Easterbrook's letter supporting the rule change is here. The key paragraph:
When the institution of unpublished opinions was created, these documents were unavailable to most lawyers. Local rules forbade citation in order to avoid the advantage that institutional litigants, such as the Department of Justice, otherwise could obtain. Today they are published on Westlaw, Lexis, and the Federal Appendix. Under recent legislation every circuit must post them online in searchable form. The original justification for not citing these documents no longer applies. Nor is it possible to justify a non-citation rule by reference to the difficulty in handling the greater volume of dispositions; computers build indexes on the fly and have made obsolete the old key number system that had been swamped by too many opinions. It is hard for courts to insist that lawyers pretend that a large body of decisions, readily indexed and searched, does not exist. Lawyers can cite everything from decisions of the Supreme Court to "revised and extended remarks" inserted into the Congressional Record to op-ed pieces in local newspapers; why should the "unpublished" judicial orders be the only matter off limits to citation and argument? It implies that judges have something to hide.
Indiana's Rule on Unpublished Opinions. Rule 65 of Indiana's Rules of Appellate Procedure provides as follows (emphasis added):
Rule 65. Opinions and Memorandum Decisions
A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.
Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.

B. Time to File Motion to Publish. Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication.

C. Official Reporter. West’s Northeastern Reporter shall be the official reporter of the Supreme Court and the Court of Appeals.

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.

E. Certification of Opinion or Not-For-Publication Memorandum Decision. The Clerk shall serve uncertified copies of any opinion or not-for-publication memorandum decision by a Court on Appeal to all counsel of record, unrepresented parties, and the trial court at the time the opinion or memorandum decision is handed down. The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court. The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.

How available are the unpublished Indiana Court of Appeals decisions? My experience (please correct me if you have better information) is that paper copies of the unpublished opinions may be obtained from the Clerk of the Court. (Of course, you will need to ask for them by name.) The Indiana Tax Court posts both its published and unpublished opinions on line; the latter are designated "Not for Publication." The Court of Appeals does not post its not-for-publication opinions online, although I do believe that back in the pre-Internet days when the Supreme and Appellate opinions were available via a dial-up bulletin board system, not-for-publication opinions were included. Finally, it does not appear that West publishes the not-for-publication Indiana opinions, but simply notes the existence of each opinion. This is unlike the 7th circuit and other federal opinions which, as Judge Easterbrook notes in his letter, are made available "on Westlaw, Lexis, and the Federal Appendix."

Posted by Marcia Oddi on February 21, 2004 07:14 AM
Posted to General Law Related